Batman, Bananas, Halloween and the Law

Generally speaking, whenever the words “Halloween” and “Law” are together you hear stories about trick or treaters getting injured on someone else’s property or someone getting injured in a haunted house or corn maze and not about trademark or copyright law areas. My goal here is to change that logic, and make you think twice when creating next year’s Halloween costume.

Halloween can be a fun holiday for young kids and adults. Dressing up and making your own costume is a way to show your creativity and can be a way to be someone or something else for a day or night. However, all your Halloween candy can taste spoiled if you or your costume violate trademark or copyright laws while you are trick or treating.


Generally speaking, it is very tough for a Halloween costume to gain copyright protection. Courts have established that costumes constitute “useful articles” and only serve the utilitarian function of providing clothing. However, if the costume contains or incorporates a design (graphic, picture, sculptural design, …etc.) element that can exist independently of the costume you may be afforded a limited copyright protection in that design. What does this mean in English, costumes really are just articles of clothing and unless they have some special design element that can be separate from the outfit, are not likely to be granted any form of copyright protection.

For example, one of my favorite crime fighters, Batman, has a unique bat design on his outfit. This symbol is well known and has the ability to stand on its own as an independent work for copyright purposes.


Speaking of the Batman logo, this can also be another form of intellectual property know as a trademark. The Batman logo or symbol is certainly a well-known trademark owned by DC Comics.

A well-known recent lawsuit between retail wholesale Halloween costume company Rasta Imposta and Kangaroo Manufacturing over a banana costume can help paint the picture for you. In Silvertop Assocs. v. Kangaroo Mfg., No. 18-2266, 2019 U.S. App. LEXIS 22989 (3d Cir. Aug. 1, 2019), Rasta Imposta filed a copyright infringement claim (amongst other claims like a good lawyer does) for selling a similar full body yellow banana costume. The Court ultimately found in favor of Rasta and the banana costume, noting that its artistic features, including the color, lines, shape, and length were sculptural features that were separable and could be exist independently from the costume. The Court relied on a recent Supreme Court decision in Star Athletica. The ruling is an example of how Court favor creativity and encourage businesses and individuals to find creative, different, and expressive ways to make and sell Halloween costumes.

How does this relate to the Halloween costume you and your mom make at home instead of the one you purchase at Target?

The same trademark and copyright issues exist when you are making your costume instead of purchasing one from a store. However, since you are not selling it commercially it is very unlikely that anyone will come after you for infringement. So, take a deep breath and enjoy Halloween. However, some of the benefits of the digital age mean you and your Halloween costume could “go viral” so creativity and personal expression are always encouraged when creating your own costume. Remember to be cautious of using trademark brands, logos, designs and the like, but don’t be scared (lol more Halloween humor). Courts use the doctrine of “Fair Use” and its four elements to determine if your use of a copyright costume constitutes infringement. One of those factors is the potential effect of your use on the market. So if you are making your costume for you to use on Halloween only and not for sale online you should be ok. If you have any questions give the Kurtz Law Firm a call.

Zak Kurtz is the founder and partner of Kurtz Law Firm and the Sneaker Law FirmTM focusing on sports, fashion, intellectual property, technology and sneaker law areas.

Trademark Basics

What Trademarks are registrable in India?

Thank you for choosing Kurtz Law Firm to help with your Trademark needs. The attorney handling your specific trademark will keep you up to date with the status of your mark as it goes through the registration process with the United States Patent and Trademark Office (“USPTO”). Some basic trademark information about trademarks and the process are listed below for your reference. If you have any additional questions, comments or concerns please contact us directly.

What is a trademark or service mark?

A trademark is generally a word, phrase, symbol or design, or a combination thereof that identifies and distinguishes the source of the goods of one party from those of others. A service mark is the same as a trademark, except that it identifies and distinguishes the sources of a service rather than goods.

How long does a trademark last?

Unlike copyrights or patents, trademark registration rights can last indefinitely if the owner continues to use the mark to identify goods or services. The term of a federal trademark registration is ten years, with ten-year renewal terms.

How much does it cost to file a trademark?

Trademark services fees consist of legal fees plus registration fees owed to the USPTO for filing or maintaining a federal trademark. The proper filing fee is for your application will be based on three distinct factors. Those factors are:

(1) NUMBER OF MARKS: Only ONE mark may be filed per application. If you have multiple marks, they require separate applications, each with its own filing fee;

(2) NUMBER OF CLASSES: You must pay for each class of goods and/or services in the application. For example, if the application is for one mark but the mark is used on goods in two different classes, such as computer software in Class 9 and t-shirts in Class 25, then a filing fee for two classes is required before the application could be approved; and

(3) THE APPLICATION FILING OPTION SELECTED: There are several ways you can file your application with the USPTO, and they are listed below with the price for each.

  • The TEAS Plus filing option has a filing fee of $225 per class of goods or services, but has the strictest requirements (see TMEP §819.01).
  • The TEAS Reduced Fee (TEAS RF) filing option is $275 per class of goods or services and requires the applicant to (1) provide an e-mail address and authorize the USPTO to send e-mail correspondence concerning the application throughout the application process and (2) agree to electronically file, through TEAS, certain application-related submissions that may be filed during the application process.
  • The TEAS Regular filing option is $325 per class, but does not have the additional requirements of TEAS Plus or TEAS RF. 

The fees above are the federal registration fees that the USPTO charges to file an pplication. Attorneys fees can range from $700-$5,000 more dollars depending on the mark and if it is opposed or refused. Kurtz Law Firm offers unique flat fee opportunities for trademark registration, renewal, clearance searches, enforcement and maintenance areas. Our creative fee structures for trademark services can be found here.

More information from the USPTO on trademark processing fees can be found here.

Will my personal information be available to the public?

In short, yes. Information you submit will become public record and will permanently remain searchable in USPTO online databases, Internet search engines, and other databases.  This can include your name, phone number, email address, and street address.

How long is the examination process for my trademark?

Once your attorney files the application and gets a serial number, your application will then get the ‘pending examination’ status.  In approximately 3 months from that date, your application will be assigned to a USPTO examining attorney for review.  Once a trademark examining attorney reviews the application they will respond with a refusal or will publish the mark globally in the trademark gazette to see if anyone else opposes the registration. If the mark faces opposition or is refused by the examining attorney they will state the specific reasons and give you an opportunity to respond and possibly overcome the initial refusal. The overall process can take up to 18 months. The application cannot mature into a registration unless all legal requirements are met, and many applications never satisfy these requirements and therefore never register.